53 F. 284 -

53 F1d 284

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Case Text

284

FEDERAL REPORTER,

vol. 53.

liable for the debt, and .he furnishes the goods in silence, there being no acts or circumstances from which it can be inferred that the credit of the ship was either within the contemplation of both parties, or was recognized:by both, a maritime lien will not be implied. There is an obvious distinction between the liability of the'ship for supplies furnished upon the order of the special owner, whiehheis solely personally liltble to pay for, and the liability for contract.i of afl'reightmentwhich,he has entered into. In the latter case the' maritime law binds the vessel to the cargo. "The general owner lUltst 'be taken to know' that the purpose for which the vesf*'l is hired, when not employed to carry cargo belonging to the hirer, is to carry cargo of third persons, 'and that bills of lading or charter pame$'must, in the invariable, regular course of that business, be made, ·for the performance of which the law confers a lien on the vessel.'l. Freeman v. Buckingham, 18 How. 182. In the ease of a foreign :ownerpro hac vice, who has agreed with the general owner that he will pay· for the supplies, and whose relations 'to the vessel and to the general owners are known to the person who furnishes supplies, the presumption is that credit is given to hini':Pel'sonally, unless some facts or circumstances repel and overpresumption. In almOst all-cases where a stranger and come foreigner .seeks for credit, something will be said or done in the course of the negotiations to show that personal: credit alone'is not offered,or is not esteemed sufficient., m both parties indicate, in their dealings with each other,th3lt personal creditis not questioned, the meredlargEliupcm 'the books to the vessel is not adequate to create In this case the ·supplies were ordered by the owner prohac':v-icewhom the libelants' ,agent knew to be the charterer; the vessel was not in distress; tl:).e :eOakwas wanted to enable her to for seemw,h-ave been no extrinsic' !cdTcumstanceS) other thitll' the charge upon' the books, presUIl1ption that the supplies and work were nished 'upoll 'the credit'of the special owner. The appellant relies upon tb.eM$JEl Of The India, 16 Fed. Rep. 262, which was decided by thecircuitcoll'rtupon the strength of what was believed to be.tht! law ofthis''Circuit,llSdeclared-in The City of New York, 3 Blatchf. 189. Upon;'f11rther consideration, we are of opinion that these two cases should not' be followed to the extent which the breadth of the language in' the 'decisions would justify. The decree of the distric1i court is cosb;; in both courts.
THE D. L. & W. NO. 6C. 'fHE ,OCEAN WAVE.
ROGERSv. TWO BARGES AND A CARGO OF COAL. (District Court, S.D. New York. November 23, 1892.)
1. SALvAGE-BuRNmG BUILDINGS-TOWAGE FROM PIER.

Where two :barges, one worth $250, Rnd the other. with her cargo, $650. weretoweci away from a wharf near which buildings had caught fire. and the resnIts showed that their removal was reasonably necessary, but they would

THE D. L. &: W. NO.

6 c.

285

probably have been removed in season by their owner, who was not on the scene at the outbreak of the tire, held, that the salvinA' vessel should recover $100 in the case of the barge, and $150 for the other barge and cargo.
2.

SAME-LmEL WITHOUT NOTICE-COSTS.

But as the were immediately libeled for salvage. without the salvor's reporting to theIr owner where the boats were or making known his claim. costs were disallowed.

In Admiralty. Libel by Robert Rogers against the barge D. L. & W. No.6 0, and her cargo of coal, and the barge Ocean Wave, for salvage. Decree for libelant, without costs. Carpenter & Mosher, for the libelant. Edwards & Odell, forthe D. L. & W. No.6 C. E. G. Davis, for the Ocean Wave. BROWN, District Judge. At about 3 o'clock on the morning of Yay 6, 1892, a large :tire occurred at the Abattoir occupying a block between Forty-Fifth and Forty-Sixth streets, and between the East river and First avenue. The pilot of the libelant's steam tug Champion saw the fire about the time of its breaking out, while he was passing in going up the Ett$t river to land a dumper at Sixtieth street. As soon as the dumper· was landed, the Champion returned, and f;owed away from the bulkhead between Forty-Fifth and Forty-Sixth streets the two barges above named, in order to protect them from the fire. The tide being flood, they were first removed only to FortyThird street; but that no.t being a safe place to leave them, they were taken down at about 6 o'clock A. M. toa proper landing at TwentyEighth street. On the same day at about 11 A.M. the above libel was filed for salvage. barges were removed between 3 and half past 3 A. M., in t1te early stages of the. fire. No one was aboard of thElm at thetiIlle, and no ohe was present in the immediate vicinitJ;; but there were one or two tire boats above, near FortySixth street, playing upon the fire. The buildings on the block were mostfy brick buildingS ; but near the river front, between Forty-Fifth and Forty-Sixth streets, the end of the· brick building was of wood, and wooden sheds ran within three or four feet of the stringpiece of the bulkhead, for most 'of the distance from Forty-Fifth to FortySixth streets. Some inflammable matter was stored in the sheds, and all the buildings were consumed by the flre. There has been considerable controversy concerning the actual danger to the barges, and their need of assistance. There was some wind at the time from the eastward, so that the fire worked, in the main, away from the river. It caught in a drying house, which was only some 60 or 75 feet from the river front, and the elevator, which was still nearer, was early on fire; and, as I have said, everything on the waterfront was consumed. I have no doubt that the situation, therefore, was one in which the removal of the barges .was reasonallly necessary for their safety. Only a few minutes after they were moved, another boat was moved from the Forty-Sixth street pier, by another tug, after conference with the watchman in charge. There was nothing, however, specially inflammable about these two barges; and as they were several feet below the stringpiece, I do not think there )Vas a necessity for

FEnER':,\,LRE1'\)W.rER,

53.

,aifulr'they andJ:lisw,atcbm.an came to the bulkhead; and had.not ,theOhampiQ,D. removed the':oo&,t8i tht\iYwould,no dOlibt, have been attended the owners, who cotftdhave i:nadeilse,if necessarY,ofasman tug; which was not far distant. It is the policy of the law, however, to encourage prOliirpilitude' and readiness to rescue property f!oom d.anger by giving 8i sqitBble, but notexeessive reward, ,according to the circumstances of each case. The value of the boats in this case seems to have,been quite small, not above $250 each; tb.e eoafori ,board of one of the value of about $400. One liundred'dollars for the boat that was light, and $150 for the other boat and cargo will, 1 think, be a sufficient this case. " ,',', , ,' 'Phe,coIJlplaints made of,the' 'haste of 1jb,e :tiling his few tiikento Twenty-Eighth ,eyen ,to, the. oftha ,boats where the boats'iwa:re. known his claim, or en· to adjust it, founded, and must prevent the a¥owance of costs., pecree aecordlDgly. 'THE RIVERSDALE.

offered.· She thereafter backed and blew alarm whistles. but the'sILiH'tI$" vessel,b:v reallon of having no lookout. did not appreciate the steaPlBr'sdisabled condition in time to, avoid her. as she might have done. For the resulting collision, held, that both vessels were in fault.

A'lte.mei'·mBstlnlf a salling vessel. put her wheel over to avoid her. wben ireI,' fuqqer;c,hain. belDg defective" broke. No expl!matlon of her insufficient

BROWN, District Judge. At about half past 2 o'clock in the afternooD.'0f 'May24, 1892; as the steamer the Riversdalewas steaming slowly npthe npperbay a short diStance below Bedloe's island, the starboard'b6w,about 20 feet aft of the Eltem, came in collision with the bowsprit of the schooner Allen Green,which was going down, and both"l'eceived some damage, for which the above libel and cross libel were 'filed. The wind was about southwest-a fresh breeze, with oCNtsioiial lulls. The schooner, when nearly ahead of the